LECTURE ON PRE-EMPLOYMENT By: Atty. GENER M.

GITO The Labor Code is not only confined to providing, setting and regulating the rights of workers while they are in the actual employ of the employer. It also sets out mechanisms to promote employment and provides rules and regulations even before one is employed. This is the reason why Book 1 of the Labor Code deals with Pre-Employment. Book 1 provides for the creation of government agencies that will be responsible in promoting employment and in providing protection to workers even during the preemployment stage. As can be gleaned from the Article 12 of the Labor Code, it is the policy of the State to promote and maintain the state of full employment. It is also the policy of the state to protect every citizens desiring to work locally or overseas by securing for him the best possible terms and conditions of employment. While it true that it is the responsibility to the State to promote full employment, it recognizes also the participation of the private sector in the recruitment and placement of workers both locally and overseas. Legislative Background of Overseas Employment Act No. 2486 was the first law passed by Philippine Legislature in 1915 related to overseas employment. It provided for license issuance, license fee and welfare regulations. The law governed from 1915 to 1975. PD 442, the Labor Code. It paved the way for the creation of Overseas Employment Development Board (OEDB) and the National Seamens Board (NSB). PD. 1412 because of the great demand of OFW in Middle East, the government revived the private sector participation in the recruitment and placement of workers. E.O. 797 it created the POEA to streamline the function E.O. 247 Reorganization Act of POEA. It strengthens the function of POEA. R.A. 8042 - Migrant Workers and Overseas Filipino Act of 1995. Agencies in charged in promoting and regulating employment opportunities. What are the agencies of the government that are in charge in promoting employment opportunities and regulating employment? With respect to local employment, it is the Bureau of Local Employment or the BLE (E.O. 797). However, through Administrative Order No. 186, series of 1987 the Secretary of DOLE devolved the function of the BLE to its regional offices. Thus, if you want to be issued an authority to engage into recruitment and placement of workers for local employment and issuance of work permits to non-resident aliens and of employment
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registration certificates to resident aliens, you go to the regional office of the DOLE. With respect to overseas employment, it is the Philippine Overseas Employment Administration (POEA). Thus, if you want to be issued an authority to engage into recruitment and placement of workers for employment, you go to POEA. Let us first discuss the jurisdiction of POEA. There was no POEA in the Labor Code. What were created in the Labor Code at the time it was enacted were Overseas Employment Development Board (OEDB) and National Seamen Board (NSB). The latter was the agency which involved seamen or overseas employment. In 1982, by virtue of EO 797 the OEDB, NSB and the foreign employment program of the BES was united in a single structure which is now the POEA. In 1987, by virtue of EO 247, the POEA was again reorganized. Thus, the functions of OEDB, NSB and foreign employment program of BES were transferred to POEA such that the former agencies were already abolished. Before the effectivity of Republic Act No. 8042, the POEA has jurisdiction to entertain the following cases: a. Recruitment violation and related cases consisting of all pre-employment cases which are administrative in character, involving or arising out of recruitment laws, rules and regulations, including money claims or violations of conditions of the conditions for the issuance of license to recruit. b. Employer-Employee relations cases consisting of all claims arising from employer-employee relationship or by virtue of any law or contract involving Filipino workers in overseas employment, such as but not limited to: 1. Violation of the terms and conditions of employment 2. Disputes relating to implementation and interpretation of employment contracts 3. Money claims of workers against their employers and their agents 4. Death, disability and other benefits 5. Violation or non-compliance of compromise agreement. c. OFWs Disciplinary actions for breach of discipline against

Now, such jurisdiction is transferred to the National Labor Relations Commission (NLRC). Section 10 of R.A. 8042 provides: Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the primary and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino
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workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. Now, what are those cases which can be entertained by POEA? There are two kinds of overseas contract workers. The land based overseas workers and seafarers. The POEA has different rules and regulations with respect to the two categories of overseas workers. Land based A. Recruitment violation cases

The Administration shall exercise original and exclusive jurisdiction to hear and decide all cases which are administrative in character, involving or arising out of violations of recruitment rules and regulations including refund of fees collected from workers and violation of the conditions for issuance of license to recruit workers. Where to file complaint? Any complaint arising out of recruitment violation or violation of conditions of license may be filed with the Adjudication Office of this Administration or at the POEA Regional Centers/Extension Units exercising territorial jurisdiction over the place where the complainant was recruited at the option of the complainant. The Office with which the complaint was first filed shall take cognizance of the case. Where the complainant was recruited within the National Capital Region, the complaint shall be filed with the Adjudication Office of the Administration. In the case of reports received by the Administration, the report shall be investigated by the Adjudication Office, or by the appropriate Regional Center/Extension Unit of the Administration. However, the venue of cases filed with the Adjudication Office of the Administration may be transferred to the POEA Regional Center/Extension Unit before the respondent files its answer upon request of either party and approved by the Administration. For the purpose of hearing and receiving of evidence, the DOLE Regional Office exercising territorial jurisdiction over the place where the complainant was recruited may be deputized by the Secretary of Labor to take cognizance of the case for submission of its findings and recommendations to the Administrator. Who May File the compliant? Any aggrieved person may file a complaint in writing and under oath for violation of the Labor Code and the POEA Rules and Regulations and other issuances relating to recruitment. For this purpose, an aggrieved person is one who is prejudiced by the commission of a violation. However, the Administration, on its own initiative, may conduct proceedings based on reports of violation POEA Rules and Regulations and other issuances on overseas employment subject to preliminary evaluation. Who will review the decision of the POEA?
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The Secretary of Labor and Employment shall have exclusive jurisdiction to act on appeals/petitions for review of recruitment violation cases and other related cases decided by the Administration. What is the period for appeal? The party aggrieved by a decision of the Administration may appeal the same to the Secretary of Labor and Employment within fifteen (15) calendar days from receipt of a copy of the decision. Failure of the aggrieved party to perfect his appeal within the reglementary period shall render the decision of the Administration final and executory. B. Disciplinary action cases

The Administration shall exercise original and exclusive jurisdiction to hear and decide disciplinary action cases against migrant workers, foreign employers and principals that are administrative in character. Thus, disciplinary action cases may be filed against migrant workers, foreign employers and principals. Where to file? Any complaint involving disciplinary action cases shall be filed with the Adjudication Office of the Administration. Grounds employers for disciplinary action cases against foreign

a. Default on its contractual obligations to the migrant worker and/or to its Philippine agent; b. Gross violation of laws, rules and regulations on overseas employment; c. Gross negligence leading to serious injury or illness or death of the worker; d. Grave misconduct; e. Conviction of an offense involving moral turpitude; f. Any other case analogous to the foregoing. Grounds for disciplinary action against migrant workers a. Pre-Employment Offenses

1. Using, providing, or submitting false information or documents for purposes of job application or employment. 2. Unjustified refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency/ies. a. Offenses during Employment

1. Commission of a felony or crime punishable by Philippine Laws or by the laws of the host country; 2. Unjustified breach of employment contract;
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3. Embezzlement of company funds or monies and/or properties of a fellow worker entrusted for delivery to kin or relatives in the Philippines; and 4. Violation/s of the sacred practices of the host country.

Where to file? Any person may file a complaint in writing and under oath for disciplinary action against a migrant worker with the Administration. Who will review the decision of the POEA? The Secretary of Labor and Employment shall have exclusive jurisdiction to act on appeals/petitions for review of recruitment violation cases and other related cases decided by the Administration. What is the period for appeal? The party aggrieved by a decision of the Administration may appeal the same to the Secretary of Labor and Employment within fifteen (15) calendar days from receipt of a copy of the decision. Failure of the aggrieved party to perfect his appeal within the reglementary period shall render the decision of the Administration final and executory. Seafarers A. Recruitment violation

The Administration shall exercise original and exclusive jurisdiction to hear and decide all cases which are administrative in character, involving or arising out of violation of recruitment laws, rules and regulations or violation of the conditions for issuance of license to recruit seafarers, including refund of fees collected from seafarers. Who may file the complaint? Any aggrieved person may file a complaint in writing and under oath for violation of the provisions of the Labor Code, POEA rules and regulations and other issuances relating to recruitment. For this purpose, an aggrieved person is one who is prejudiced by the commission of a violation. However, the Administration, on its own initiative, may conduct proceedings based on reports of violation of the Labor Code, these rules and other issuances, subject to preliminary evaluation. Where to file? Any complaint arising out of recruitment violation or violation of the conditions of license may be filed with the Adjudication Office of this Administration or in the nearest POEA Regional Centers/Extension Units or the DOLE Regional Office exercising territorial jurisdiction over the place where the complainant was recruited at the option of the complainant. The office to which complaint was first filed shall take cognizance of the case.
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Where the complainant was recruited within the National Capital Region, the complaint shall be filed with the Adjudication Office of the Administration. In the case of reports received by the Administration, the same shall be investigated by the Adjudication Office, this Administration or at the appropriate Regional Office/POEA Regional Center/Extension Unit. However, the venue of cases filed with the Adjudication Office may be transferred to the Regional Office/POEA Regional Center/Extension Unit before the respondent files its answer and upon request of either party and upon approval by the Administration. For purpose of hearing and receiving of evidence, the DOLE Regional Office exercising territorial jurisdiction over the place where the complainant was recruited may be deputized by the Secretary of Labor to take cognizance of the case for submission of its findings and recommendations to the Administrator. Who will review the decision of the POEA? The Secretary of Labor and Employment shall have exclusive jurisdiction to act on appeals/petitions for review of recruitment violation cases and other related cases decided by the Administration. What is the period for appeal? The party aggrieved by a decision of the Administration may appeal the same to the Secretary of Labor and Employment within fifteen (15) calendar days from receipt of a copy of the decision. Failure of the aggrieved party to perfect his appeal within the reglementary period shall render the decision of the Administration final and executory. B. Disciplinary action cases

The Administration shall exercise original and exclusive jurisdiction to hear and decide disciplinary action cases against seafarers, foreign employers, and principals which are administrative in character. Any complaint involving disciplinary action cases shall be filed with the Adjudication Office of the Administration. Grounds against employers or principals a. Default on its contractual obligations to the seafarer and/or to its Philippine agent; b. Gross violation of laws, Rules and Regulations on overseas employment; c. Grave misconduct; d. Conviction of an offense involving moral turpitude; e. Gross negligence leading to serious injury or illness or death of the seafarer; f. Any other case analogous to the foregoing. DISCUSSION ON REPUBLIC ACT 8042 Which has jurisdiction involving money claims of Filipino workers for overseas employment?
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Section 10 of R.A. 8042 provides: Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract. Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within four (4) months from the approval of the settlement by the appropriate authority. In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. Non-compliance with the mandatory periods for resolutions of cases provided under this section shall subject the responsible officials to any or all of the following penalties: (a) The salary of any such official who fails to render his decision or resolutions within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; (b) Suspension for not more than ninety (90) days; or (c) Dismissal from the service with disqualifications to hold any appointive public office for five (5) years.

Provided, however, that the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph. What does money claim consist of? 1. 2. 3. Placement fee with 12% per annum Salaries for the unexpired portion Moral, exemplary damages

In case of illegal pre-termination of contract, how much can be claimed? 1. Placement fee with 12% per annum 2. Salaries for the unexpired portion 3. Moral, exemplary damages It should be stressed that the phrase for three (3) months for every year
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of the unexpired term, whichever is less has already unconstitutional by the Supreme Court in the case of Serrano.

Against whom will the claim be filed? 1. 2. 3. Principal/employer Recruitment/Placement Agency Corporate officers of the Recruitment and placement agency

What is the nature of liability between the principal/employer and recruitment placement agency? Joint and solidary If the recruitment and placement agency is a juridical personality, what is the nature of liability between the corporate officers, and directors and partners as a case may be and the corporation or partners? Joint and Solidary Illegal recruitment Illegal recruitment is both defined in the Labor Code and R.A. 8042. Under the Labor Code, it is defined as: Any recruitment activities, including the prohibited practices enumerated in Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal. (Article 38) It should be stressed that when the law refers to recruitment activities, it means any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertizing for employment, locally or abroad, whether for profit or not xxx. (Article 13, par. b)

How is illegal recruitment defined in R.A. 8042. Under Section 6 of R.A. 8042, illegal recruitment is defined as: Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority x x x. The definition also includes the prohibitive acts committed by any person, whether a non-licensee, non-holder, licensee or holder of authority. Under the above definition of illegal recruitment, it would show that even the licensees or holder of holder authority may be liable for illegal recruitment. This is possible when they committed acts enumerated in Section 6 R.A. 8042. Thus, if a question is asked whether a holder of authority to recruit and place workers be liable for illegal recruitment; the answer to that question is YES? Illegal recruitment under the Labor Code and R.A. 8042 differs on the following: 1. Labor Code refers to recruitment activities for employment locally or abroad, while R.A. 8082 pertains exclusively to recruitment activities for overseas employment. Thus, supposing an illegal recruitment activity is committed which is supposedly for local employment, the accused should be prosecuted under the Labor Code. If the illegal recruitment activity is supposedly intended for overseas employment, the accused should be prosecuted under R.A. 8042. 2. Under the Labor Code, illegal recruitment can only be committed by a non-licensee or non-holder of authority while it can also be committed even by a license or holder of authority. 3. The prescriptive period of illegal recruitment under the Labor Code is three (3) years while under R.A. 8042, it is twenty (20) years. What are the elements of illegal recruitment? 1. Recruitment and placement activities. 2. Non-licensee or non-holder of authority but this is immaterial under R.A. 8042 because even a licensee or holder of authority may be liable. Illegal recruitment committed, when considered economic sabotage. 1. When committed by a syndicate if it is carried out by a group of three (3) or more person conspiring and confederating with one another. 2. When committed in large scale if committed against three (3) or more persons individually or as a group. Where do you file the case of illegal recruitment? Where is committed or where the complainant resides.
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